In the past year, several states have approved "religious freedom" legislation, which others have called a "license to discriminate" and is more sweeping than federal laws in this area. Does this mean that pharmacists could refuse to fill prescriptions for Truvada for use as pre-exposure prophylaxis (PrEP) if they say they have a religious belief that disavows certain sexual behavior?
The answer, as you may guess, is not simple. Are you ready for a legal journey through the wild world of local, state and federal rulings that could protect or threaten the right of access to HIV prevention, depending on where someone lives? Take a walk with Jenny Pizer, the law and policy project director at Lambda Legal.
When the question was floated online, Pizer came back with a detailed answer that shows how Indiana, a state with a new and broad religious freedom law, may differ from other states, like California, that do not.
It's important to note that there have not been any reports of pharmacists refusing to fill PrEP prescriptions. The bottom line is that all people who feel they should be on PrEP should go ahead and get started in the process. The biggest barrier to PrEP access is likely lack of knowledge that it's available, and that it is covered by most insurance, public programs and patient assistance programs -- so don't let fear of harassment stand in the way of HIV prevention options that could work for you.
But let's get to the details:
Pizer starts by delineating where and when this kind of discrimination could happen:
Whether a pharmacist can refuse on religious grounds to fill a prescription for a medication to which she or he objects on religious grounds depends on where this is taking place. State law matters first, and we also have to consider whether there is any federal law (such as the ACA) that applies. I find it helpful to think about this as a grid that maps the religious right the pharmacist wants to assert against the patient's right to have the prescription filled. Each one's rights can vary under both state and federal law and there are numerous still-unanswered questions in the wake of the Supreme Court's Hobby Lobby decision.
Starting with the assumption that the person seeking the prescription is in California, she poses the problem:
[W]hen you present the prescription to your local pharmacist, she refuses to fill it, saying she considers it a sin to facilitate your sinful sexual conduct. That is the framing of the "religious freedom" argument made regarding birth control, infertility care for, rental of apartments to unmarried heterosexual couples ("If I rent to this unmarried couple and they fornicate in the apartment, I, the landlord, have facilitated their sin, which is itself a sin"), selling of wedding cakes, etc.
But, hey, does the pharmacist even have to stock Truvada at all? Pizer says:
If those controlling the business decide not to carry it, that may be the end of it. Unless the pharmacy has a contract with a health plan through which it has agreed to fill all the prescriptions, or unless there's a state health rule of some kind requiring that it be available, or a medical "standard of care" rule that makes it malpractice not to offer it, the pharmacy gets to decide what products to carry. California's nondiscrimination law (the Unruh Act) requires that businesses sell to everyone without discriminating. Unruh regulates who can purchase, but doesn't tell them WHAT to sell.
What if they give other sexual drugs associated with heterosexuals? Or give Truvada to heterosexual couples? Pizer adds:
If the medication is Viagra, not Truvada, and the pharmacist happily sells it to men perceived as straight but refuses on religious grounds to sell to men perceived as gay, then you have a discrimination problem and the Unruh Act applies.
Or if the medication is Truvada and the pharmacist fills prescriptions for, say, married heterosexuals at risk due to hemophilia, but not for people perceived as [men who have sex with men] MSM, then again, there's a discrimination problem and Unruh applies.
Pizer continues with the possible California scenario:
You've presented your prescription. The pharmacist has refused to fill it upon asking, and you telling, that there's no wife in the picture. [Lambda Legal] [sues] on your behalf under the Unruh Act. The pharmacist asserts an affirmative defense based on freedom of religion, relying on both the U.S. Constitution (the First Amendment's "free exercise" clause) and the California Constitution's similar provision.
As in the Benitez case, the court should reject the federal free exercise claim because the federal test is the easily satisfied "rational basis" test (thanks to Justice [Antonin] Scalia's 1990 decision in Employment Division v. Smith). We show the court that the Unruh Act is rationally related to the legitimate purpose of stopping discrimination, and the religious free exercise defense is rejected.
The legal standard under the California Constitution is still not settled. But even if a strict scrutiny test is used, your rights to be treated equally regardless of sexual orientation SHOULD prevail over the pharmacist's religious rights in the context of a commercial pharmacy.
However, if this scenario plays out in Indiana, it could be a different ballgame, Pizer says:
Most importantly, there's no statewide nondiscrimination law that protects you. There might be a claim under a local ordinance, but those usually have limited remedies.
So we don't even have reason to test the additional protection the pharmacist may have under the new state "religious freedom restoration act." And note that Indiana's RFRA didn't "restore" religious rights because nothing had reduced them, unlike what happened in federal law due to the Employment Division decision, which prompted passage of the federal RFRA statute, which was at issue in the Hobby Lobby case.
Then how does the RFRA change things? Pizer answers:
But in Indiana, the new RFRA just put into statute what's already guaranteed by the Indiana Constitution, except for the way the new state RFRA gave full religious rights to secular commercial businesses in ways never contemplated by those who wrote the state constitution.
Does federal law have anything to say about this? And how does the law change with Truvada as prevention as opposed to treatment? Pizer continues:
If we're talking about a medication considered an "essential health benefit" under the ACA, and you have insurance purchased through "Covered California" (our state ACA exchange), or provided by a large employer required to provide it by the ACA, then we have an issue like in the Hobby Lobby case, but taking things an interesting step further:
Supreme Court Justice [Samuel] Alito's majority opinion in Hobby Lobby permitted the employer to refuse to pay for insurance coverage for contraception, but said his analysis does not provide a shield for race discrimination in hiring. And he said his decision turns on the fact that female employees will be able to get insurance coverage for contraception elsewhere so the impact on them will be "zero."
Justice [Anthony] Kennedy's concurring opinion (with his vote having been necessary to create the 5-4 majority), says the employer's religious rights are limited by the rights of others, specifically employees, who have "compelling" interests.
As you know, it matters that the right to be treated equally is "compelling" when the religious refusal right is subjected to a strict scrutiny/compelling interest test, meaning the religious objection will prevail unless the law being objected to serves a compelling interest in a properly restrictive way. That is the test required by the federal RFRA statute. That federal law applied in Hobby Lobby because the fight was over an ACA requirement--the ACA being a federal law. The federal RFRA doesn't offer a religious defense to state or local laws.
So, as discussed above, if your claim against the pharmacist is based on California's Unruh Act, the federal RFRA statute does not apply.
But what if you're in Indiana? Pizer addresses that:
If you are in Indianapolis, you will rely on the local nondiscrimination ordinance and the pharmacist will rely on the Indiana Constitution. The pharmacist will NOT rely on the new Indiana RFRA because we all prevailed and persuaded the Indiana legislature to amend it to preclude its use as a defense to a civil rights claim. (YAY! A huge victory with important national implications. BUT ONLY PART of what is needed for that RFRA to not be atrocious public policy. See the new blog post by our terrific new-ish colleague, Kyle Palazzolo.)
As against the pharmacist's religious defense based on the Indiana Constitution, you SHOULD win, with reasoning like what we used in the Benitez case. But it will depend on whether the Indiana Supreme Court agrees that the local nondiscrimination ordinance serves a compelling interest, like the California Supreme Court's analysis in Benitez. Given the amendment of the RFRA to exclude use against civil rights claims, I think chances are reasonably good.
However, if you live in a part of Indiana without protection against discrimination, as is still the case for large parts of the country, too bad for you. You got bupkis.
Can federal legislation do anything? Pizer says:
Now, when Congress passes the comprehensive nondiscrimination bill that includes public accommodations protection for LGBT people (and we can have a separate conversation about that), we will have important questions about whether its text has excluded use of RFRA as a defense or otherwise given guidance about the interests served by the new law.
I addressed some of these questions in my discussion of the Hobby Lobby decision.
So, to wrap this up:
If Truvada prescriptions are not filled for anyone, the problem is similar to what women have faced in the reproductive health area. Although some medical treatments are only needed by women, blanket refusal to provide them often is not recognized as sex discrimination. And even when they are the medical standard of care and approved by relevant medical authorities, religious refusals often are allowed.
But if a treatment is offered to some and not others on a discriminatory basis (as opposed to a medical-appropriateness basis), then a nondiscrimination law will apply. If there is one.
Last point: Often, if treatment can be construed somewhat broadly, it is easier to show that a refusal is discriminatory. For example, if hormone replacement therapy is offered to post-menopausal women and post-testicular-cancer men, then it should be provided to transgender people; the medical professional has no objection to provision of hormones (the "what"), and just to "who" is being served/treated/whatever.
But if the treatment is construed more narrowly (perhaps a particular therapeutic mix for the transgender patient, or a particular type of reconstructive surgery), then religious refusers have a stronger argument that the particular treatment (the "what") is not done for anyone.
I suspect this is lots more than you were expecting, and I hope it leaves you with more answers and fewer questions than you had before!
Mathew Rodriguez is the community editor for TheBody.com and TheBodyPRO.com. You can follow him on Twitter at @mathewrodriguez, like his Facebook page or visit him on his personal website.